Citation Nr: 0331885
Decision Date: 11/18/03 Archive Date: 11/25/03
DOCKET NO. 95-15 025 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in New York,
New York
THE ISSUE
Whether the character of the appellant's discharge from
military service constitutes a bar to Department of Veterans
Affairs (VA) benefits.
REPRESENTATION
Appellant represented by: New York State Division of
Veterans' Affairs
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Siobhan Brogdon, Counsel
INTRODUCTION
The appellant served on active service from July 1952 until
December 1954. This matter comes before the Board of
Veterans' Appeals (Board) on appeal from a November 1992
administrative decision of the VA Regional Office (RO) in New
York, New York, that determined that the appellant's period
of service from July 17, 1952 to December 23, 1954 was under
dishonorable conditions for VA purposes, and that he was
barred from the VA benefits he had sought.
The appellant was afforded personal hearings at the RO in
October 1992 and June 1994, and before a Member of the Board
sitting at New York, New York, in May 2003; the transcripts
of which are of record.
REMAND
The appellant asserts that he served in the Korean War and
received the Combat Infantryman Badge for meritorious service
therein. A review of the record indicates that he had
service with the United States Army between July 1952 and
December 1954. He filed an application for VA loan guaranty
entitlement in April 1992, whereupon he was informed in a
letter dated in June 1992 that his discharge from service
under other than honorable conditions constituted a bar to
the benefit sought.
The record reflects that a request to the National Personnel
Records Center (NPRC) in May 1992 yielded no records, either
personnel or service medical, relating to the appellant,
although it was indicated that his discharge was based on
"unfitness." Upon further inquiry by the RO in July 1992
as to the facts and circumstances of the appellant's
discharge, a response was received in August 1992 indicating
that his records had likely been destroyed in the 1973 fire
at the NPRC.
Subsequent to two hearings on appeal, the RO solicited
information from the U. S. Armed Services Center for Research
of Unit Records (CRUR) in December 1997 which responded in
May 1998 that it did not provide general historical
documentation.
The Board points out in this instance that none of the
appellant's service personnel or medical records have been
received or associated with the claims folder. It is shown
that while the RO has requested records from the NPRC and the
CRUR, it appears that there has not been an exhaustive or
comprehensive effort to obtain any other extant records to
substantiate the appellant's claim. The Board observes that
it does not appear that the RO has relayed any pertinent
requests to any other alternate records repository, to
include the Army Board for Correction of Military Records,
the Army Military Review Board, or the Army Discharge Review
Board. In a case such as this one, VA bears a heightened
duty to advise the appellant of this problem, and of possible
alternative forms of evidence that he may submit in support
of his claim. See Smith v. Brown, 10 Vet. App. 44, 48
(1998), citing Layno v. Brown, 6 Vet. App. 465, 469 (1994),
and Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992). The
efforts to obtain any records from a Federal department or
agency shall continue until the records are obtained, or
until it is reasonably certain that such records do not exist
or that further efforts to obtain those records would be
futile. 38 U.S.C.A. § 5103A(b)(3)) (West 2002).
In a decision promulgated on September 22, 2003, Paralyzed
Veterans of America v. Secretary of Veterans Affairs,
345 F.3d 1334 (Fed. Cir. 2003), the United States Court of
Appeals for the Federal Circuit invalidated the 30-day
response period contained in 38 C.F.R. § 3.159(b)(1) as
inconsistent with 38 U.S.C.§ 5103(b)(1). The Court made a
conclusion similar to the one reached in Disabled American
Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339,
1348 (Fed. Cir. 2003) (reviewing a related Board regulation,
38 C.F.R. § 19.9). The court found that the 30-day period
provided in § 3.159(b)(1) to respond to a VCAA duty to notify
is misleading and detrimental to claimants whose claims are
prematurely denied short of the statutory one-year period
provided for response. Therefore, since this case is being
remanded for additional development or to cure a procedural
defect, the RO must take this opportunity to inform the
appellant that notwithstanding the information previously
provided, a full year is allowed to respond to a VCAA notice.
In this regard, the Board observes that there is no
documentation in the record notifying the appellant of the
allocation of the burden of producing evidence; that is,
which evidence VA will obtain and which evidence the
appellant must provide pertaining to his claim for VA
benefits. See Quartuccio v. Principi, 16 Vet. App. 183
(2002). The RO should provide the appellant with the
appropriate notice under the VCAA.
Accordingly, this matter is REMANDED to the RO for the
following actions:
1. The RO must review the claims file
and ensure that all VCAA notice
obligations have been satisfied in
accordance with the recent decision in
Paralyzed Veterans of America v.
Secretary of Veterans Affairs, as well
as 38 U.S.C.A. §§ 5102, 5103, and 5103A
(West 2002), and any other applicable
legal precedent.
2. The RO should again contact the
NPRC and request an additional search
for the appellant's service records
which may have become associated with
the file since the last request. The
NPRC should also conduct a search for
the appellant's personnel file
including a complete DA Form 20 and the
records pertaining to the appellant's
discharge. Specifically, the 1992
responses indicating that the reason
for discharge was "unfitness" suggest
that additional documents, other than
the Certificate of Military Service,
exist. If no such service medical or
personnel records can be found, or if
they have been destroyed, the RO should
again ask for specific confirmation of
that fact.
3. The RO should contact the Army
Board for Correction of Military
Records, the Army Military Review
Board, the Army Discharge Review Board,
and any other appropriate records
repository, to request the appellant's
military records or any proceedings or
determinations pertaining to discharge.
4. If the RO is unable to obtain any
of the relevant records sought, it
shall notify the appellant that it has
been unable to obtain such records by
identifying the specific records not
obtained, explaining the efforts used
to obtain those records, and describing
any further action to be taken with
respect to the claim. 38 U.S.C.A
§ 5103A(b)(2)); 66 Fed. Reg. 45,620,
45,631 (codified at 38 C.F.R.
§ 3.159(e)(2003).
5. Following completion of the above,
the RO should re-adjudicate the issue
of whether the character of the
appellant's discharge from military
service constitutes a bar to Department
of Veterans Affairs (VA) benefits. If
the benefit sought on appeal is not
granted, the appellant and his
representative should be provided with
a supplemental statement of the case
and afforded a reasonable opportunity
to respond thereto. Thereafter, the
claim should be returned to the Board
for further appellate consideration.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.43 and 38.02.
_________________________________________________
J. E. DAY
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2002).